Suit claims the city's temporary ban is overreaching, preempted by state law

Bongo Love, of Lafayette, takes a hit of marijuana from a vaporizer while sitting next to Kyrie Wozab, of Louisville, on Wednesday, Jan. 2, 2013, at Front Tea & Art Shop in Lafayette. (Jeremy Papasso / Daily Camera file photo)

A Lafayette tea shop owner has sued the city over an ordinance passed earlier this month that temporarily bans any recreational marijuana-related businesses, including those that provide for or allow "the use of marijuana" on site.

The Front Tea & Art Shop's owner, Veronica Carpio, claims in her lawsuit that Lafayette's moratorium flouts state law, which permits adults 21 and older to possess and use up to an ounce of pot and grow up to six marijuana plants. Colorado voters passed Amendment 64, the marijuana-legalization measure, in November.

The lawsuit, which was filed in Boulder District Court, also claims that Lafayette is violating Carpio's property rights by not permitting her to assist adults with the consumption of marijuana inside her business, and behind closed doors, as guaranteed by Amendment 64.

Veronica Carpio (Camera file photo)

Until Lafayette's ordinance took effect last week, people were allowed to bring marijuana into The Front during evening hours and vaporize it.

Carpio -- who used to own a medical marijuana dispensary in Lafayette and is serving a year of probation after pleading guilty to a felony marijuana possession charge last year -- is seeking a preliminary injunction to stop the city from enforcing the ordinance in full.

A hearing on the case has not yet been set.

'Groundbreaking' case?

The lawsuit has the potential to set a precedent in the burgeoning legal universe of recreational marijuana, where other disputes have arisen over how far local governments can go in regulating pot-related enterprises, like cannabis clubs. Several attorneys contacted Friday said they hadn't heard of a similar lawsuit having been filed anywhere else in the state.

Tommy West, Carpio's Boulder-based lawyer, said The Front's lawsuit is "absolutely groundbreaking" in that it attempts to establish the proper role municipalities can legally play in managing recreational marijuana before the state even has created its rules.

"Cities are allowed to legislate on matters of local concern, but on matters of statewide concern, they are very limited," he said. "We want to settle this matter now -- not wait until there are 20 other cities that have passed an ordinance like this."

Greenwood Village made waves earlier this year after its city council voted to ban use, possession and transportation of marijuana on city property, including sidewalks and public streets.

State officials are in the midst of crafting an extensive set of recreational marijuana regulations that likely will put to rest a lot of the legal disagreements that have cropped up. In the meantime, many Colorado communities -- including most in Boulder County -- have enacted moratoria on pot-related businesses.

Carpio said her store in Old Town Lafayette does not sell or grow pot or collect an entrance fee.

Thus, she said, it is not a marijuana-related business as envisioned by Amendment 64, which specifically grants municipal governments the power to regulate the operation of marijuana retail stores in addition to cultivation, product manufacturing and testing facilities.

Lafayette, her suit claims, overstepped its home rule authority by getting involved in a matter that Amendment 64 labels a "statewide concern" -- namely the right of adults in Colorado to consume marijuana in private.

"A local ban ordinance or interpretation that conflicts with state law in an overlapping field of regulation, i.e. the Colorado Constitution, is subject to preemption by state law," the lawsuit reads. "Furthermore, local governments may not forbid that which the state has explicitly authorized."

Health, safety concerns

Lafayette counters that its land use authority, and its status as a home rule city, gives it the power to enforce the ordinance it passed Feb. 5. City officials declined on Friday to comment on the suit.

But City Attorney David Williamson has said that The Front Tea & Art Shop can reasonably be seen as a business that falls under the city's land use powers to regulate. And, the city has argued, it hasn't been established whether a gathering of marijuana smokers in a licensed business constitutes public or private consumption of the drug. Amendment 64 does not allow open and public consumption of cannabis.

Several council members said at the time they approved the moratorium that it would effectively buy time so that state rules could be enacted and avoid the possibility of having to shut down businesses -- after the fact -- that aren't in compliance.

Rachel Allen, staff attorney with the Colorado Municipal League, said she is not surprised that the matter ended up in court, given the vagueness of some of Amendment 64's language, especially on the issue of what constitutes public and private use.

However, she said, it's reasonable for Lafayette to conclude that its land use authority would give it the right to halt the use of marijuana inside a city-licensed business. Cities have the power to regulate social clubs and can place conditions on business' operating licenses, she said.

"They can adopt regulations on time, place and manner and the number of marijuana establishments," Allen said. "Cities and towns have a concern about the health, safety and welfare of their residents."

'Complete disrespect'

But Jeffrey Gard, a Boulder attorney who has represented many clients in the medical marijuana industry, said a city's land use powers are not an "unbridled authority" to run roughshod over state law.

"You don't get to use your zoning power and home rule authority to undo a constitutional amendment," Gard said. "Cities were not granted any rights or authority under the state constitution about what adults can or cannot do with their marijuana rights."

He said the Lafayette City Council is showing more concern for the 35 percent of voters in the city who voted down the pot-legalization measure than the 65 percent who voted to pass it.

Carpio called the wording of Lafayette's moratorium a "complete disrespect for what the community wanted" and said it has forced her to consider moving her business out of the city. She said she discontinued marijuana consumption at The Front Tea & Art Shop last week to comply with the new city rule and will await the outcome of the case.

"They have definitely damaged my business, which makes paying the rent and putting food on the table a bit more difficult," she said.

Lafayette, Carpio said, has yet to serve a cease and desist order on her business.

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